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Council defeats High Court challenge to consultation on adult care cuts

The High Court has rejected a legal challenge to Trafford Metropolitan Borough Council’s consultation on its proposal to cut its adult social care budget for 2015/16.

The claimant in T, R (On the Application Of) v Trafford Metropolitan Borough Council [2015] EWHC 369 was a 46-year-old disabled man who lives in a supported living placement and is dependent on 24-hour supported care.

The court was told that he would be extremely vulnerable and at risk should any of the support he received be reduced. He acted during the proceedings through his mother as litigation friend.

Trafford’s consultation ran from 21 October 2014 to 12 December 2014. The council was due to set its budget for 2015/2016 at a meeting on Wednesday (18 February 2015).

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The ground of challenge was that Trafford failed to provide adequate information on whether there were alternatives to the council’s proposal, which would result in a lesser reduction of funding for adult social care services. The alternatives suggested were increasing council tax and using money from Trafford's reserves.

Mr Justice Stewart held an expedited hearing on 16 February. He said there were two questions before the court:

  1. Was the defendant council under a duty of common law to include information about realistic alternative options in its consultation on proposed cuts to adult social care?

  2. If so, did Trafford discharge its duty?

The judge noted that there was no statutory requirement on Trafford to consult in this case, and the issue was the common law requirement in those circumstances.

Mr Justice Stewart concluded that in this case fairness did not require consultation upon arguable yet discarded alternative options.

The judge said he took into account the two factors identified at paragraph 26 of the Supreme Court ruling in Moseley as emerging from the authorities – (a) the degree of specificity with which, in fairness, the public authority should conduct its consultation exercise may be influenced by the identity of those whom it is consulting – the economically disadvantaged may need a presentation with more specificity; (b) the demands of fairness are likely to be somewhat higher when an authority contemplates depriving someone of an existing benefit or advantage than where the claimant is a bare applicant for a future benefit.

He also accepted that there were some similarities in the statutory requirement to consult in Moseley [relating to Haringey's council tax consultation] and the voluntary consultation in the present case. “The purpose of the voluntary consultation was to have public participation in the local authority's decision making process. Though not as clear-cut as in Moseley, it might be said that the context was one with which the general public may not be expected to be familiar.”

Nevertheless, Mr Justice Stewart said:

  • Although the intention of the Trafford consultation was to involve the public, there was no statutory requirement to do this. Common law fairness may sometimes require consultation upon discarded alternative options. But in this regard the factual context in authorities cited by Lord Wilson in Moseley – R (Medway Council and others) v Secretary of State for Transport and R (Montpeliers and Trevors Association) v Westminster City Council was “a world away from the present case”;
  • The context of Moseley, though it had similarities, was different. In Moseley, the statutory consultation was about making people pay council tax when they were previously exempt from it. “The present case involves five different consultations on differing areas of the total budget, in circumstances where there has been no (pre) determination of how and where the detailed impact of budget reductions in any particular part will fall.” In this regard the judge also had regard to the caution endorsed by the Court of Appeal in the Royal Brompton case.

  • There was nothing in Moseley that detracted from a paragraph in the Court of Appeal ruling in Rusal in October 2014 which provided: 
"It is also clear from the authorities that the courts have to allow the consultant body a wide degree of discretion as to the options on which to consult: as the Divisional Court held in the Vale of Glamorgan Council v Lord Chancellor and Secretary of State for Justice…at [24]:
…there is no general principle that a Minister entering into consultation must consult on all possible alternative ways in which a specific objective might arguably be capable of being achieved. It would make the process of consultation inordinately complex and time consuming if that were so….”
  • Before presenting the proposals to the public in the way it did, Trafford had “clearly considered very carefully the alternatives of increasing council tax/using reserves. Also, information as to why these had been rejected was available to the public to some extent”;
  • The claimant had suggested that all that had been needed was something like (a) an indication that there were alternatives, (b) a rough illustration of what the alternatives might be e.g. increasing council tax by x%, (or less if only to mitigate the effects) and/or spending y% of unallocated reserves, (c) an account of the reasons why these had been discarded. “In the circumstances of the present case, particularly given the reasoning of the council, and the fact that this information was available and discussed during the consultation to some extent, there is a real doubt as to whether such extra steps would have made any real difference.

Mr Justice Stewart concluded that, overall, with the council having chosen to consult, in his judgment they were entitled lawfully to present their preferred option and to consult on the best way to achieve that.

The judge said that it could not be the case that if an authority did not consult on rejected options, and only presents a preferred option for consultation, then that must be misleading.

“It is one thing positively to mislead as in Moseley,” he noted. “It is quite another for the council, in all the circumstances of the case, to have and to put forward, after careful and detailed consideration, a point of view that circumstances dictated that it was not realistic to increase council tax or to use reserves and therefore to focus the consultation on savings in services.”

In relation to the second question about whether the council had discharged its duty, the judge’s answer was:

  1. There was information in the public domain which enabled people to understand that the council did not consider that the increase in council tax and/or using reserves was a realistic option. That information was provided in a number of ways.
  2. Had there been a specific duty to consult on rejected options he would not have found that the council had complied with that duty.

  3. Given however that the answer to question 1 was that there was no such duty, in the circumstances the case then the claim must fail.

Mr Justice Stewart suggested that had his ruling on the first question been different, he would not have been minded to refuse relief on the ground alone that it would have been detrimental to good administration for the court to grant a remedy.

In response to the ruling Trafford said: "The council is pleased with the judgment in these proceedings which endorses the fairness of its budget consultation process. The council maintains that it carried out a fair and comprehensive consultation with residents and service users and has strongly contested the challenge brought against its consultation process throughout the proceedings.

“In particular, the council is pleased that the Court has soundly rejected the claimant’s assertions that the consultation was misleading. From the outset the council has made considerable efforts to ensure the consultation would reach and be understood by as many people as possible.”

The local authority added: “Whilst the council regrets that it has to change and adapt how it delivers services such as social care, it cannot continue to operate as it has done with less money. Difficult choices have had to be made, but the council’s priority has always been to make sure that the most vulnerable in our community have the appropriate level of support and advice and has been publically open and honest about its position and the proposed changes to services. 

“It is regrettable that the council has been obliged to defend its position in this matter as this has cost a significant amount of public money and taken up a lot of senior officer time; money and resources that would have been spent on maintaining these important services."

Mathieu Culverhouse of Irwin Mitchell, the claimant’s lawyers, said: “We are disappointed in the outcome as many vulnerable disabled adults, and their family and friends, are worried about the consequences of budget cuts. We will now be discussing the potential appeal options with our clients.” 

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